Tacorante v. People

• Decision Date: 02 March 1981
• Docket Number: No. 80SC107,80SC107
• Citation: 624 P.2d 1324
• Parties: Roger C. TACORANTE, Petitioner-Appellant, v. The PEOPLE of the State of Colorado, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 1324

624 P.2d 1324

Roger C. TACORANTE, Petitioner-Appellant, v. The PEOPLE of the State of Colorado, Respondent-Appellee.

No. 80SC107.

Supreme Court of Colorado, En Banc.

March 2, 1981.

Rehearing Denied March 23, 1981.

Davidovich & Welton, Charles Welton, Denver, for petitioner-appellant.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Kathleen M. Bowers, Asst. Atty. Gen., Denver, for respondent-appellee.

DUBOFSKY, Justice.

The appellant, Roger C. Tacorante, challenges ¹ his conviction for aggravated robbery ² because the trial court refused to instruct the jury on the affirmative defense of involuntary intoxication and the lesser included offense of simple robbery. ³ He also challenges the sentence entered under the indeterminate sentencing statute, ⁴ contending that he should have been sentenced under the first version of House Bill 1589, ⁵ the determinate sentencing law. We affirm the appellant's conviction and sentence.

About 6:30 p. m. on December 23, 1977, the owner of a liquor store at 1400 South Broadway in Denver was confronted in his store by the appellant, who cocked a semi-automatic pistol and pointed it at him. The appellant directed the owner to stand next to his assistant at the cash register and put the money from the register in a paper bag. Both the owner and the assistant testified at trial that they feared death or bodily injury during the course of the robbery.

When a customer entered the store, the appellant pointed the gun at him and told him to put his wallet on the counter. The appellant then ordered the three victims into the back room of the liquor store. The owner took a pistol from his desk, returned to the front room, and shot the appellant once in the back as he left the store. The police found the appellant lying on the sidewalk with a loaded gun and money nearby.

At trial, a defense witness testified that the appellant had injected three bags of heroin about an hour before the robbery. A psychiatrist called by the defense testified that the appellant had been addicted to heroin for approximately ten years and that addiction substantially diminished a person's ability to refrain from using heroin. The appellant subsequently requested the trial court to instruct the jury on his defense that involuntary heroin intoxication, caused by his addiction, had prevented him from forming the requisite intent to commit aggravated robbery. The appellant also requested an instruction on simple robbery.

The jury convicted the appellant of aggravated robbery. At sentencing on May 4, 1979, the defense argued that the maximum sentence the court could impose for a class three felony was four and one-half years because the first version of House Bill 1589 had become effective on April 1, 1979. ⁶ The court, however, applied the indeterminate sentencing statutes, which prescribed a sentencing range of from five to forty years imprisonment for a class 3 felony, ⁷ and sentenced the appellant to a minimum of sixteen years and a maximum of sixteen years and one month in the state penitentiary, with credit for 489 days of pre-sentence confinement.

Because the consumption of heroin by an addict causes self-induced, not involuntary, intoxication and because there was no other evidence of involuntary intoxication, the trial court correctly refused to give the tendered intoxication instructions. The trial court also correctly refused to instruct the jury on the lesser included offense of simple robbery; no evidentiary basis existed for a verdict of simple robbery.

Finally, the trial court correctly sentenced the appellant on May 4, 1979, under the indeterminate sentencing statutes. The April 1, 1979, effective date of the first determinate sentencing bill was postponed when the Governor signed the second H.B. 1589, ⁸ a revised version of the original determinate sentencing bill, on March 29, 1979. Because this second bill did not become effective until July 1, 1979, the indeterminate sentencing statute remained in effect until that date.

I.

At trial the appellant introduced evidence of heroin intoxication and addiction as bases for an affirmative defense of involuntary intoxication under section 18-1-804, C.R.S.1973 (now in 1978 Repl.Vol. 8). ⁹ He argues that he cannot be held criminally responsible for his conduct because his heroin intoxication at the time of the robbery was not self-induced. Section 18-1-804(5) characterizes intoxication as "self-induced" only if a defendant knowingly introduces the intoxicant into his body. The appellant reasons that evidence of his heroin addiction and resulting inability to forego heroin use required submission of the question whether he knowingly induced his intoxication to the jury.

Our review of the record confirms the propriety of the trial court's refusal to give the appellant's requested instruction on involuntary intoxication. ¹⁰ The only evidence supporting the defense of involuntary intoxication was testimony, first, that the appellant was a heroin addict under the influence of heroin at the time he committed the robbery and, second, that lengthy heroin addiction results in a greatly diminished capacity to refrain from using heroin. Inability to refrain from drug use does not warrant an involuntary intoxication instruction without further evidence that the intoxication was involuntary and that it impaired the defendant's capacity to abstain from the conduct proscribed by the substantive criminal statute under which he has been charged.

Mere addiction is not sufficient to render the injection of heroin involuntary or unknowing. Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413 (1975); Commonwealth v. Sheehan, --- Mass. ---, 383 N.E.2d 1115 (1978); Loveday v. State, 74 Wis.2d 503, 247 N.W.2d 116 (1976). As the trial judge here observed, carrying the appellant's argument to its logical conclusion results in an absurdity: a person so addicted to intoxicants that he is unable to refrain from their use could never be held responsible for his criminal conduct.

II.

The trial court rejected the appellant's tendered instruction on simple robbery, ¹¹ a lesser included offense of aggravated robbery. ¹² A simple robbery instruction is mandatory when the evidence would justify acquitting a defendant of aggravated robbery while convicting him of simple robbery. People v. Lundy, 188 Colo. 194, 533 P.2d 920 (1975); People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972). Here, the owner of the liquor store and his assistant testified that the appellant put them in fear of death or serious bodily injury during the robbery "by the use of ... intimidation with a deadly weapon." Because "none of the evidence presented showed anything less than aggravated robbery," People v. Reed, supra, 180 Colo. at 19, 502 P.2d at 954, we uphold the trial court's refusal to instruct the jury on simple robbery.

III.

The appellant requested the trial court to sentence him under the first version of H.B. 1589 which established a determinate sentence for class three felonies. The court refused to impose the sentence fixed by the first determinate sentencing bill and instead sentenced the appellant to a minimum of sixteen years and a maximum of sixteen years and one month imprisonment in the state penitentiary. This sentence is within the indeterminate sentencing range prescribed by sections 16-11-304, C.R.S.1973 (1978 Repl.Vol. 8) and 18-1-105(1), C.R.S.1973 (1978 Repl.Vol. 8). The appellant now seeks to set aside the sentence entered by the trial court and to substitute for it a lesser sentence.

The General Assembly adopted the first version of H.B. 1589 in June, 1977. It was to become effective on July 1, 1978. The Governor vetoed the bill; however, we declared his veto invalid. In re Interrogatories of the Governor, 195 Colo. 198, 578 P.2d 200 (1978). Thereafter, the Governor called a special session of the General Assembly to request a delay in the bill's effective date. H.B. 1001 of the First Extraordinary Session of the Fifty-First General Assembly postponed the effective date of H.B. 1589 to April 1, 1979. See People v. McKenna, Colo., 611 P.2d 574 (1980).

At the next regular session of the General Assembly, a second version of H.B. 1589, amending the original determinate sentencing bill, was adopted. Among the amendments enacted by the legislature were section 23, delaying the effective date of the first version of H.B. 1589 to July 1 1979, ¹³ and section 25, providing that the second version of H.B. 1589 would take effect on July 1, 1979 and be solely prospective in effect. ¹⁴

Sections 23 and 25 read as follows:

"Section 23. Section 79 of chapter 216, Session Laws of Colorado 1977, as amended by section 1 of chapter 1, Session Laws of Colorado 1978, First Extraordinary Session, is amended to read:

Section 79. Effective date. This act shall take effect April 1, 1979 JULY 1, 1979.

Section 25. Effective date applicability. This act shall take effect July 1, 1979, shall apply to offenses committed on or after said date, and, notwithstanding any other provision of law or court rule, shall not apply to offenses committed prior to said date."

The appellant here argues that under section 25 of the act, the effective date of the second version of H.B. 1589 was July 1, 1979. He asks us to rule that because July 1, 1979, is the effective date of the entire act, the provision of section 23 which postponed the effective date of the first version of the bill was not itself effective until July 1, 1979. If the postponement was not effective until July 1, 1979, then by its terms, the first determinate sentencing bill took effect on April 1, 1979, and remained in effect until July 1, 1979. Because the defendant was sentenced on May 4, 1979, he argues that he is therefore entitled to receive a determinate maximum sentence under the first bill. We disagree.

The Governor signed the second determinate sentencing ...